Burnam v. DeLong

GRIFFIN, Acting P. J. This action was commenced in February, 1930, by Ralph S. Bliss and wife, as plaintiffs, to foreclose a mortgage on real property. In September, 1926, defendants Frank W. DeLong and Estelle D. DeLong executed and delivered to plaintiffs a promissory note for $3,000, secured by a mortgage. They defaulted in payment of principal and interest. In addition to these defendants, other defendants were sued by fictitious names. Summons and complaint were duly served on the DeLongs and they defaulted. Defendants Norman Farra and Hilda M. Gray, sued by fictitious names, were likewise served. Defendant Gray filed an answer in propria persona and claimed some interest in the property. Norman Farra did not appear and his default was entered. The default matter was heard on February 27, 1931. There is no record showing that defendant Gray was ever served with . notice of trial. The minutes of the court of February 27,1931, show that “This cause coming on regularly at this time for trial . . . and no one appearing on behalf of defendants, default as to defendants DeLong is hereby ordered entered. On motion of plaintiffs cause ordered dismissed as to fictitious defendants not served with summons . . . Court finds that there is due plaintiffs from defendants” DeLong the amount prayed for.

On March 4, 1931, the trial judge signed and the clerk entered a decree of foreclosure reciting that summons and complaint had been duly served on all defendants including [561]Hilda M. Gray; that the time within which they or either of them may appear has expired; that default of each has been duly entered; and “that said action has been duly dismissed as to defendants Norman Farra and Hilda M. Gray.” The judgment then provides for the sale of the property under foreclosure proceedings by a commissioner and for a deficiency judgment against the DeLongs. That judgment became final. Over 14 years later, on April 2, 1945, an order was entered in that same case entitled “Order Amending Judgment Nunc Pro Tunc,” reciting: “It appearing to the court that the judgment heretofore entered by the clerk in the above entitled action, by reason of inadvertence of the court, does not correctly state the judgment of the court; It Is Ordered that said judgment and the record thereof be amended, nunc pro tunc, in the following respects: Paragraph First of said Decree is hereby amended to read as follows, ’ ’ reciting that the DeLongs and other defendants were duly served with complaint and summons; that Hilda M. Gray “appeared and answered” but “did not appear at the trial”; that the time within which the DeLongs and Norman Farra had to appear had expired and all except Hilda M. Gray have made default. The court then ordered that the original judgment entered March 4, 1931, be corrected accordingly, nunc pro tunc. The nunc pro tunc order was made, apparently, without notice to any of the defendants. More than one year thereafter, on May 17, 1946, the DeLongs and Hilda M. Gray filed a notice of motion for an order vacating said nunc pro tunc order, based on the files of said action and an affidavit of their attorney in which it is recited that no notice was ever given defendants of any motion to amend, or of the intention of the court to enter such a nunc pro tunc order amending the previous judgment. It is also shown that the first notice they had that said order had been entered was on March 1,1946. The minutes of the court’s proceedings of February 27, 1931, were read in evidence on June 21, 1946. By consent, T. W. Burnam and Aletha K. Burnam were substituted as plaintiffs and respondents. On July 3, 1946, the trial judge denied defendants’ motion to set aside the previous order. The DeLongs and Hilda M. Gray have appealed from the order.